Journal of Law and Health
Judicial Decisions Citing to Journal Articles
Krim v. PCOrder.com, 402 F.3d 489 (5th Cir. 2005) (holding that “Investors, who were aftermarket purchaser of stock, lacked standing under § 11 of the Securities Act of 1933, because they could not trace their stock to the registration statement in question; that any share chosen at random had 90 percent chance of being tainted did not confer standing, as that view could not be squared with statutory language”):
Here, Appellants have relied exclusively on a presentation of background statistics. Second, in any case, DNA evidence is more particularistic than the statistics here. DNA analysis seeks to establish a match between the DNA of a particular individual ( e.g . a suspect) and a "mystery" sample ( e.g. from a crime scene), essentially by quantifying and narrowing the universe of possible sources of the DNA. n62
n62 See 3 DAVID L. FAIGMAN ET AL., MODERN SCIENTIFIC EVIDENCE: THE LAW AND SCIENCE OF EXPERT TESTIMONY § 24-9.2 (2d ed. 2002) ("DNA typing is capable of exceedingly high discrimination, and in favorable circumstances it can be shown that only one person in several billion could have been the source of the evidence bloodstain."); see also Commonwealth v. Gaynor , 443 Mass. 245, 820 N.E.2d 233, 240 (Mass. 2005) (noting that "one in 64 quadrillion (64 x 1015) African-Americans would be expected to have the same DNA profile as the sperm fraction"); Rayford v. State , 125 S.W.3d 521, 526 (Tex. Crim. App. 2003) ("The DNA expert testified that the probability of the DNA belonging to someone other than Hall was one in 116 billion."); cf. Miller v. Albright , 523 U.S. 420, 484-85, 140 L. Ed. 2d 575, 118 S. Ct. 1428 (1998) (Breyer, J., dissenting) (citing E. Donald Shapiro et al., The DNA Paternity Test: Legislating the Future Paternity Action , 7 J.L. & HEALTH 1, 29 (1992-1993), for the proposition that "current testing methods can determine probability of paternity to 99.999999% accuracy").
United States v. D.F., 857 F. Supp. 1311 (E.D Wis. 1994):
In my discussion below, I apply an interest-balancing analysis, and arrive at the conclusion that the privilege should not be applied in this case. It is worth noting, however, that the result would be no different under a definitional approach. D.F. would have difficulty showing that her statements (1) were confidential; (2) were made to medical personnel covered by the privilege; and (3) would not be excepted from the privilege (a) based on a criminal trial exception, (b) based on a homicide trial exception, (c) based on a child abuse exception, or (d) based on an exception for individuals posing dangers to others. See generally Proposed Rule 504, reprinted in Jack B. Weinstein and Margaret A. Berger, Weinstein's Evidence 504-1, 504-1 - 2 (1993); Cunningham v. Southlake Center (or Mental Health, Inc., 125 F.R.D. 474, 477 (N.D. Ind. 1989) (absent showing of close supervision, extension of privilege to communications with social worker is unwarranted); Brian Domb, I Shot the Sheriff but only My Analyst Knows: Shrinking the Psychotherapist-Patient Privilege, 5 J.L. & Health 209 (1990/91) (discussing the scope of the privilege and of the various exceptions).
Chem. Serv. v. Envtl. Monitoring Sys. Lab.-Cincinnati of United States EPA, 816 F. Supp. 328 (E.D. Pa. 1993) (holding that a private business that was competitively injured by cooperative research and development agreements entered into by a government agency pursuant to the Federal Technology Transfer Act lacked standing to challenge those agreements or to claim that they were breached because it was not an entity in the zone of interest protected by the Act.”):
In 1986 Congress passed the Federal Technology Transfer Act ("FTTA"). 15 U.S.C. § 3710a et seq. (1991). In short, the purpose of the FTTA is to encourage technology transfer between government scientists and private industry. S.Rep. No. 283, 99th Cong., 2d Sess., (1986) reprinted in 1986 U.S.C.C.A.N. 3442. To effectuate this purpose the FTTA authorizes each federal agency to permit the director of any government-operated federal laboratory to enter into cooperative research and development agreements ("CRADAs") with, among others, private entities. 15 U.S.C. § 3710a(a)(1) . A CRADA is defined as:
any agreement between one or more Federal laboratories and one or more non-Federal parties under which the Government, through its laboratories, provides personnel, services, facilities, equipment or other resources with or without reimbursement (but not funds to non-Federal parties) and the non-federal parties provide funds, personnel, services, facilities, equipment, or other resources toward the conduct of specified research or development efforts which are consistent with the missions of the Laboratory . . .
15 U.S.C. § 3710a(d)Essentially, a CRADA is a contract under which a private company contributes money and expertise to a federal laboratory to augment its own research in exchange for rights in any resulting inventions. Thomas N. Bulleit, Jr., Public-Private Partnerships in Biomedical Research; Resolving Conflicts of Interest Arising Under the Federal Technology Transfer Act of 1986, 4 J.L. & Health 1 (1989/1990).
Ulibarri v. Super. Ct., 909 P.2d 449 (Ariz. Ct. App. 1995) (holding that "[i]n a psychiatrist malpractice action, a limited waiver of the attorney-client privilege, to the extent it concerned the patient's memory of events at issue, was proper because the patient related the confidential information to the psychiatrist.”):
The marital communications privilege is not "more important" than the attorney-client privilege; it is conceptually different. See 25 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5577, at 607 (1989). In expressing this difference, we find the following analysis helpful:
Green and Nesson [E. Green & C. Nesson, Problems, Cases and Materials on Evidence (1983)] have classified privileges into two distinct types. The first is based on the professional counseling relationship between the holder of the privilege and the counselor for the purpose of fostering the effectiveness of the professional services; this category would include the lawyer-client, physician-patient, and priest-penitent privileges. The second category seeks to throw a veil of secrecy around certain areas of privacy in order to protect autonomy and dignity; the marital privilege and the privilege against self-incrimination fall into this latter group.
Brian Domb, Note, I Shot the Sheriff, But Only My Analyst Knows: Shrinking the Psychotherapist-Patient Privilege , 5 J.L. & Health 209 (1991).
Catholic Charities of Sacramento, Inc. v. Super. Ct., 85 P.3d 67 (Cal. 2004)
(rejecing an "employer's challenge to the Women's Contraception Equity Act because the Act was facially neutral towards religion and under either the rational basis or strict scrutiny test, the Act passed constitutional muster.”):
In the present controversy, one side posits that sex is an aspect of autonomy, a vital human function in which men and women should be able to engage, enjoying their sexuality "free from anxiety." (Hayden, Gender Discrimination Within the Reproductive Health Care System: Viagra v. Birth Control (1999) 13 J.L. & Health 171, 181 .)
In re Eden F., 741 A.2d 873 (Conn. 1999) (holding that an "order reversing termination of parental rights was improper; proof of reasonable efforts to reunify mother with children was not required under applicable statute, mother was not rehabilitated, and termination was in children's best interests.”):
Ann F. points to certain evidence adduced during the trial tending to establish that, over the years, she has made progress in coping with both her illness and her children. n33 Indeed, the evidence does suggest that Ann F. has achieved a level of stability within her limitations. This fact, coupled with Ann F.'s sincere love for her daughters, evokes genuine sympathy for Ann F. and for her efforts at rehabilitation. n34 Nevertheless, in light of all the evidence, including the uncontroverted opinions of Spudic, Mantell and Sadler, we cannot say that the trial court was clearly erroneous in concluding, by clear and convincing evidence, that Ann F. had failed to reach such a degree of rehabilitation as would encourage the belief that, within a reasonable period of time, she could assume a responsible position in the lives of her children. n35
n35 At trial, Ann F. claimed that there exists a "strong bias against parents [with] mental illness," and that Ann F. herself had been "battling" such bias in connection with this case. Ann F., however, makes no such claim on appeal. Of course, any such bias would be intolerable, and vigilance must be exercised to ensure that the parental rights of mentally ill persons are afforded the full protections provided under our stringent statutory scheme. See generally, e.g., R. Sackett, "Terminating Parental Rights of the Handicapped," 25 Fam. L.Q. 253 (1991); P. Bernstein, "Termination of Parental Rights on the Basis of Mental Disability: A Problem in Policy and Interpretation," 22 Pac. L.J. 1155 (1991); see also M. Perlin, "The ADA and Persons with Mental Disabilities: Can Sanist Attitudes Be Undone?," 8 J.L. & Health 15 (1994).
This is a tragic and difficult case that will have a long-standing, future effect upon parents with mental disabilities. The courts may have "[little] experience in the area of terminating parental rights of handicapped parents." R. Sackett, "Terminating Parental Rights of the Handicapped," 25 Fam. L.Q. 253, 253 (1991). "Handicapped persons do not generally comply with society's stereotype of a parent. The handicapped parent's parenting skill may therefore be assessed under standards that result in him or her being considered an inadequate parent because he or she is handicapped." Id., 272. Adding to this difficulty is the fact that Ann F. suffers from a mental illness. "Surveys show that mental disabilities are the most negatively perceived of all disabilities." M. Perlin, "The ADA and Persons with Mental Disabilities: Can Sanist Attitudes Be Undone?" 8 J.L. & Health 15, 26 (1994).
State v. Harden, 938 So. 2d 480 (Fla. 2006) (holding that an “[i]ndictment alleging defendants violated Fla. Stat. § 409.920(2)(e) (2000), the "anti-kickback" provision of the Florida Medicaid fraud statute, was properly dismissed because § 409.920(2)(e) was impliedly preempted by federal legislation and therefore was unconstitutional under the Supremacy Clause.”):
In contrast, the federal statute applies only to those acts that are performed "knowingly and willfully," which requires proof that "the defendant acted with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful." United States v. Starks, 157 F.3d 833, 838 (11th Cir. 1998) (quoting Bryan v. United States, 524 U.S. 184, 193, 118 S. Ct. 1939, 141 L. Ed. 2d 197 (1998) , in which a federal firearms trafficking law prohibited anyone from "willfully" violating the statutory provision that forbids dealing in firearms without a federal license). n8
n8 Prior to the Supreme Court's decision in Bryan, only the Ninth Circuit Court of Appeals had applied a heightened mens rea standard to the federal anti-kickback statute. See Hanlester Network v. Shalala, 51 F.3d 1390, 1400 (9th Cir. 1995) (construing "knowingly and willfully" as requiring defendants to know that the statute prohibits offering or paying remuneration to induce referrals and to engage in the prohibited conduct with the specific intent to disobey the law). Other circuits have interpreted "willfully" under a middle mens rea standard, which is consistent with the Supreme Court's subsequent decision in Bryan. See United States v. Davis, 132 F.3d 1092, 1094 (5th Cir. 1998) (approving jury instruction which informed jury that knowingly "means that the act was done voluntarily and intentionally, not because of mistake or accident"); United States v. Jain, 93 F.3d 436, 441 (8th Cir. 1996) (concluding that heightened mens rea standard of Medicare anti-kickback statute only required proof that defendant knew that his conduct was wrongful and not that he knew it violated "a known legal duty"); United States v. Neufeld, 908 F. Supp. 491, 496-97 (S.D. Ohio 1995) (declining to follow the Hanlester interpretation of "willfulness" as requiring knowledge of illegality). Commentators have predicted that the standard announced in Bryan will be followed by federal courts in anti-kickback prosecutions. See Robb De Graw, Note, Defining "Willful" Remuneration: How Bryan v. United States Affects the Scienter Requirement of the Medicare/Medicaid Anti-kickback Statute, 14 J.L. & Health 271 (1999-2000) . However, even after the decision in Bryan, the Tenth Circuit still applied the higher mens rea standard to an anti-kickback prosecution. See United States v. McClatchey, 217 F.3d 823 (10th Cir. 2000) (requiring proof of specific intent to violate the law). Thus, there is still some question as to the scienter requirement for a violation of the federal anti-kickback statute. In no cases, however, have the federal courts applied a negligence or inadvertence standard similar to that in Florida's statute.
Doe v. Doe, 52 P.3d 255 (Haw. 2002) (barring a mother from relitigating the issue of paternity four years after a divorce decree deciding child custody matters):
On the other hand, genetic testing "can statistically exclude the rest of the world's male population by a probability formula. Thus, the putative father can now be conclusively included into the set of possible fathers which is infinitesimally small. Accordingly, the likelihood that a properly conducted positive paternity test is wrong is astronomically remote." E. Donald Shapiro, Stewart Reifler, & Claudia L. Psome, The DNA Paternity Test: Legislating the Future Paternity Action, 7 J.L. & Health 1, 3-4 (1992-93) [hereinafter The DNA Paternity Test].
Iowa S.C. Bd. of Prof'l Ethics & Conduct v. Grotewald, 642 N.W.2d 288 (Iowa 2001) (suspending an attorney's license for sixty days for neglecting client matters, making misrepresentations to the district court, and failing to timely respond to the disciplinary board; his depression was a mitigating factor in imposing discipline.”):
The evidence in this case reveals that serious depression often results from chemical imbalances in the brain that cause those afflicted to be plagued by growing and overwhelming feelings of hopelessness and despair. It also reveals that depression can take hold of a person without his or her knowledge or understanding of the need for treatment. The same type of evidence revealed in this case has been the subject of articles in professional journals describing the impact of depression on lawyers. See Gary L. Bakke, Brainstorm, My Experience with Depression , 61 The Iowa Lawyer, Mar. 2001, at 5, 5-7 (personal composition by President of the Wisconsin State Bar Association) [hereinafter Bakke]; see also Dennis W. Kozich, Status of Stress in the Legal Profession , 70 Wis. Lawyer, May 1997, at 31, 31 (discussing stress-related problems connected with the legal profession); Gregory J. Van Rybroek, Lawyers and Stress: An Anti-Quick Fix View , 70 Wis. Lawyer, May 1997, at 30, 30-31 (same). See generally Connie J.A. Beck et al., Lawyer Distress: Alcohol-Related Problems and Other Psychological Concerns Among A Sample of Practicing Lawyers , 10 J.L. & Health 1, 1-60 (1995-96) (compilation of results from extensive study of psychological distresses, including depression, and additional afflictions affecting lawyers) [hereinafter Beck et al.]. We also observed the same type of evidence in a recent attorney disciplinary proceeding. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Erbes , 604 N.W.2d 656, 658 (Iowa 2000). With the state of mind brought on by depression, it is understandable how neglect, and even excuses for nonperformance, can become part of the disease. See Beck et al., 10 J.L. & Health at 1-5; Bakke, 61 The Iowa Lawyer, Mar. 2001, at 6. Thus, unethical professional conduct can double as a symptom of depression. See Beck et al., 10 J.L. & Health at 2. Moreover, these symptoms too often appear before the disease is diagnosed and treatment is sought. See Bakke, 61 The Iowa Lawyer, Mar. 2001, at 5-6.
Trembow v. Schonfeld, 901 A.2d 825 (Md. 2006) (holding that a "mother was not entitled to pursue a paternity action after a child's 18th birthday; however, had the mother established paternity prior to the child's 18th birthday, or the child had independently established the same, the mother or the child would have been entitled to seek child support from the alleged father of the destitute adult child.”):
Most significant, however, is the fact that DNA paternity testing techniques presently available permit paternity to be established with near certainty. We have discussed the scientific underpinnings of DNA testing in several of our cases, and therefore I will not reiterate the discussion. See, e.g., Armstead v. State , 342 Md. 38, 49-54, 673 A.2d 221, 226-28 (1996) . The application of DNA testing techniques to questions of paternity has for many years now permitted paternity to be affirmatively established to an exceedingly high level of certainty. See E. Donald Shapiro, et al., The DNA Paternity Test: Legislating the Future Paternity Action , 7 J.L. & Health 1, 29 (1993) (DNA technology permits paternity to be affirmatively established to a probability of 99.999999%). Given that present DNA paternity testing techniques permit paternity to be affirmatively established to such a high degree of certainty, I conclude that it is no longer possible to rely on the basis upon which the Court in Mills rejected the argument that the availability of scientific paternity testing techniques makes any statutory limitations period on paternity actions not substantially related to the State's interest in preventing stale or fraudulent claims. In Mills , the Court rejected this argument because it found that there was an asymmetry in the then-available paternity testing techniques: they could affirmatively establish nonpaternity, but could not affirmatively establish paternity. See Mills , 456 U.S. at 98 n.4, 102 S. Ct. at 1554 n.4 . In the Supreme Court's view, it was this asymmetry that resulted in a continuing need for resort to traditional methods of proof of paternity, which in turn provides justification for the state to impose some statutory period of limitations on paternity actions. See id. This asymmetry, however, no longer exists as a result of the advent of DNA paternity testing techniques. Thus, in my view, the advent of these techniques calls into serious question the constitutionality of any statutory limitations period on paternity actions.
Claypool v. Mladineo, 724 So. 2d 373 (Miss. 1998) (holding that "[s]tatutes prohibiting discovery of peer review committee documents only covered the records and transcripts of committee proceedings, not documents pertaining to the results of those proceedings.”):
It has been noted that "there is extremely wide variation in the privilege granted by the states," and that "there is little consistency in the entities covered or types of information protected." Susan O. Scheutzow & Sylvia Lynn Gillis, Confidentiality and Privilege of Peer Review Information: More Imagined Than Real, 7 J.L. & Health 169, 186-187 (1992-1993); see also Ernest J. Naufel, Jr., Physician Peer Review -- Is it Really Confidential?, 45 Fed'n Ins. & Corp. Couns. Q. 229, 229-230 (1995). As a result, the case law interpreting these widely varying statutes has been described as "creating a crazy quilt effect among the states." Scheutzow & Gillis, 7 J.L. & Health at 188; see also Naufel, 45 Fed'n Ins. & Corp. Couns. Q. at 230 ("There are as many different approaches to a resolution of this situation as there are appellate courts and legislatures."); Charles David Creech, The Medical Review Committee Privilege: A Jurisdictional Survey, 67 N.C.L.Rev. 179, 212 (1988). Thus, although nearly every state has some form of statutory privilege for medical peer review, it appears that no two statutes, or courts' interpretations of them, are alike. Trinity Med. Ctr., Inc. v. Holum , 544 N.W.2d 148, 153 (N.D. 1996).
State ex rel. Counsel for Discipline v. Thompson, No. 652 N.W.2d 593 (Neb.2002) (holding that an "attorney suffering from depression was suspended from the practice of law for a period of 120 days; suspension was to ensure there would be evidence of a meaningful and sustained recovery before the attorney was allowed to return to practice.”):
However,"the determination of an appropriate penalty to be imposed on an attorney requires consideration of any mitigating factors." State ex rel. Counsel for Dis. v. Apker , 263 Neb. at 749, 642 N.W.2d at 169. In this case, Thompson asserts his depression as a mitigating factor. Depression is a serious mental illness, and lawyers are not immune to its debilitating effects. In fact, a growing body of literature suggests lawyers are especially susceptible to experiencing depression. Connie J.A. Beck et al., Lawyer Distress: Alcohol-Related Problems and Other Psychological Concerns Among a Sample of Practicing Lawyers , 10 J.L. & Health 1 (1995-96); Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession , 52 Vand. L. Rev. 871 (1999). In a recent disciplinary case that, much like this one, involved attorney neglect and misrepresentations, the Iowa Supreme Court described the interaction of depression and attorney misconduct and how depression affects the disciplinary process.
Hungerford v. Jones, 722 A.2d 478 (N.H. 1998) (holding that a "therapist owes accused parent duty of care in diagnosis and treatment of adult patient for sexual abuse where therapist or patient, acting on advice of therapist, takes public action concerning accusation.”):
It is indisputable that "being labeled a child abuser [is] one of the most loathsome labels in society" and most often results in grave physical, emotional, professional, and personal ramifications. S. v. Child & Adolescent Treatment, 161 Misc. 2d 563, 614 N.Y.S.2d 661, 666-67 (Sup. Ct. 1994) (quotation omitted). This is particularly so where a parent has been identified as the perpetrator. Even when such an accusation is proven to be false, it is unlikely that social stigma, damage to personal relationships, and emotional turmoil can be avoided. See id.; Recovered-Memory Therapy, supra 53 Wash. & Lee Rev. at 792; Note, Ridicule or Recourse: Parents Falsely Accused of Past Sexual Abuse Fight Back, 11 J.L. & Health 303, 304 (1996-97) [hereinafter Ridicule or Recourse]. In fact, the harm caused by misdiagnosis often extends beyond the accused parent and devastates the entire family. See Zamstein v. Marvasti, 240 Conn. 549, 692 A.2d 781, 794 (Conn. 1997) (Berdon, J., dissenting) (noting that therapist's negligent diagnosis of sexual abuse could destroy relationship between accused parent and child); Ridicule or Recourse, supra 11 J.L. & Health at 329. Society also suffers because false accusations cast doubt on true claims of abuse, and thus undermine valuable efforts to identify and eradicate sexual abuse. Ridicule or Recourse, supra 11 J.L. & Health at 331.
Third, the prospect of misdiagnosis and resultant false accusations is enhanced where a therapist bases a diagnosis on a psychological phenomenon or technique not generally accepted in the mental health community. Ridicule or Recourse, supra 11 J.L. & Health at 306; see Hungerford, 142 N.H. at 133-34, 697 A.2d at 930. The concept of repressed memories of sexual abuse is extremely controversial. See Hungerford, 142 N.H. at 130, 697 A.2d at 925. Moreover, the various techniques used by therapists to "recover" allegedly repressed memories of past sexual abuse are also controversial and have been criticized as being suggestive and resulting in false memories. See Recovered-Memory Therapy, supra 53 Wash. & Lee Rev. at 770; Hungerford, 142 N.H. at 125-26, 697 A.2d at 924-25 (determination of reliability incorporates examination of therapeutic technique).
Howard v. Univ. of Med. & Dentistry of N.J., 800 A.2d 73 (N.J. 2002) (holding that "[i]n medical malpractice action based upon physician's alleged misrepresentation of his experience and credentials, supreme court ruled patient and wife's compliant could not include deceit claim, but could include lack of informed consent.”):
Here, defendant explained the procedure, its risks and benefits, and the alternatives to the surgery. He then performed the procedure; another person did not operate in his stead as in the "ghost surgery" scenario. See Thomas Lundmark, Surgery by an Unauthorized Surgeon as a Battery, 10 J.L. & Health 287 (1995-1996) (defining ghost surgery as "surgery by a surgeon [to whom] the patient has not consented"). The facts in Perna simply are not helpful here.
Runyon v. Smith, 749 A.2d 852 (N.J. 2000) (affirming the decision that a doctor violated psychologist-patient privilege by testifying at child custody hearing because nothing demonstrated children were exposed to danger of a degree that triggered statutory duty to warn.”):
We generally try to avoid "unnecessary court events." State v. Shaw , 131 N.J. 1, 13, 618 A.2d 294 (1993). We should do that here. Although Kinsella had not been decided when the psychologist testified in the custody case, the trial court was fully aware of the principles of Kinsella when it dismissed the patient's subsequent complaint for malpractice. The trial court was also fully aware of the principles that govern a professional malpractice action against a psychologist.
The plaintiff in a malpractice action based on tort must establish four elements to make out a prima facie case . . . . When the plaintiff is a patient and the defendant is the patient's therapist, Schultz tells us that the four key elements necessary to prove malpractice are: "(1) that a therapist-patient relationship was established; (2) that the therapist's conduct fell below the acceptable standard of care; (3) that this conduct was the proximate cause of the injury to the patient; and (4) that an actual injury was sustained by the patient." In the particular case of a patient suing a therapist for breach of confidentiality, the most difficult hurdles to overcome, showing malpractice has taken place, are "whether the standard of care to which the psychotherapist is obliged to conform encompasses confidentiality, whether the duty is breached by disclosure and whether recoverable damages are incurred."
[Ellen W. Grabois, The Liability of Psychotherapists for Breach of Confidentiality, 12 J.L. & Health 39, 68-69 (1998).]
Even assuming that plaintiff can establish by competent expert testimony that Dr. Smith's conduct fell below the acceptable standard of care, n1 no "recoverable damages" were incurred. Grabois, supra, 12 J.L. & Health at 69.
In short, the Court has perceived the tip of the iceberg. The Court would do well to look under the surface of the water to perceive the formidable reasons why this case should be concluded. A futile rerun of the custody trial will only serve to reopen old wounds. It is time to end the discord. Lawsuits are not the solution to every problem. Ethics disciplinary boards are better suited to resolving this problem.For most licensed and trained psychotherapists, this confidential relationship will be spelled out in professional ethical codes and state statutes. Therapists, therefore, must be alert to situations in which they are called upon to reveal information about their patients. Therapists are protected by privilege statutes, but exceptions do exist. Psychotherapists must educate themselves with respect to these statutes, especially since we live in a time in which third party payors and others will seek to know more about the patient's prognosis and the usefulness of the psychotherapy. Patients, too, must be alert and inquisitive, and ask that their therapists inform them of any requests for confidential information. [Grabois, supra, 12 J.L. & Health at 84.]
Breen v. Carlsbad Mun. Sch., 120 P.3d 413 (N.M. 2005)
The fact-specific holding
“N.M. Stat. Ann. §§ Sections 52-1-41 and -42 violated equal protection by discriminating against the mentally disabled because the Act allowed substantially more compensation for persons with physical impairments than those with mental impairments and this was not substantially related to furthering the purposes and goals of the Act.”
Although this language was directed at all persons with disabilities, we note that "even within the disability community, persons with mental illness are often the poor stepchild, and remain the last hidden minority." Michael L. Perlin, The ADA and Persons with Mental Disabilities: Can Sanist Attitudes Be Undone?, 8 J.L. & Health 15, 20 (1993-94) . "Surveys show that mental disabilities are the most negatively perceived of all disabilities." Michael L. Perlin, "Their Promises of Paradise": Will Olmstead v. L.C. Resuscitate the Constitutional "Least Restrictive Alternative" Principle in Mental Disability Law?, 37 Hous. L. Rev. 999, 1032-33 (2000) (noting that mentally disabled individuals are denied jobs, housing, and publically funded programs based on behavioral myths that suggest they are deviant, strange, disproportionately dangerous, and presumptively incompetent).
Trinity Med. Ctr. v. Holum, 544 N.W.2d 148 (N.D. 1996)
The fact-specific holding
“Medical peer review privilege covered the Medical Staff Quality Assurance, Credentials, Safety, Infection, and Medical Staff Executive Committees for the purpose of malpractice discovery. The committees' internal functioning only was protected.”
Trinity relies primarily upon caselaw from other states to support its argument for a broad reading of the privilege, to cover all hospital committees, departments, and individual employees performing medical review functions, and to protect all information or documents presented to them or created at their direction. However, because of the lack of uniformity among the various states' peer review privilege statutes, caselaw interpreting those statutes is not highly persuasive in our interpretation of Sections 23-01-02.1 and 31-08-01, N.D.C.C. It has been noted that "there is extremely wide variation in the privilege granted by the states," and that there is little consistency in the entities covered or types of information protected. Susan O. Scheutzow & Sylvia Lynn Gillis, Confidentiality and Privilege of Peer Review Information: More Imagined Than Real, 7 J.L. & Health 169, 186-187 (1992-1993); see also Ernest J. Naufel, Jr., Physician Peer Review - Is it Really Confidential?, 45 Fed'n Ins. & Corp. Couns. Q. 229, 229-230 (1995). As a result, the caselaw interpreting these widely varying statutes has been described as "creating a crazy quilt effect among the states." Scheutzow & Gillis, supra, 7 J.L. & Health at 188; see also Naufel, supra, 45 Fed'n Ins. & Corp. Couns. Q. at 230 ("There are as many different approaches to a resolution of this situation as there are appellate courts and legislatures."); Charles David Creech, The Medical Review Committee Privilege: A Jurisdictional Survey, 67 N.C.L. Rev. 179, 212 (1988). Thus, although nearly every state has some form of statutory privilege for medical peer review, it appears that no two statutes, or courts' interpretations of them, are alike.
Trinity has confused confidentiality with privilege. It is the second sentence which creates the privilege. The first sentence merely provides that information made available to the committee is confidential, and "may be used by such committees and the members thereof only in the exercise of the proper functions of the committees." That provision is directed to those who acquire information in the course of serving on the committee, and directs that they are not free to disseminate such information to third persons or the public. Confidentiality, however, is not synonymous with privilege:
"Confidentiality and privilege are two compatible, yet distinct, concepts. Privilege addresses a person's right not to have another testify as to certain matters as part of a judicial process, while confidentiality addresses the obligation to refrain from disclosing information to third parties other than as part of legal process."
Scheutzow & Gillis, supra, 7 J.L. & Health at 192. We conclude that the privilege under Sections 23-01-02.1 and 31-08-01 applies only to the "proceedings and records of" covered committees.
Carter v. Oak Hill Cmty. Med. Ctr., 2001 Ohio 2657 (Ohio Ct. App. 2001)
The fact-specific holding
“Summary judgment was erroneously granted to 1st medical center in medical malpractice action; brochure, affidavit, and other evidence left material issues of fact as to whether agency by estoppel exposed 1st medical center to liability.”
The Ohio Supreme Court manifested its belief in the deep pocket theory in [ Clark ]. *** In essence, the Clark decision renders hospitals strictly liable for negligent acts of physicians providing medical care within a hospital. The only apparent exception under Clark is where a patient and her personal physician independently choose a hospital as a situs for medical treatment. *** Clearly it is questionable whether this decision furthered public policy. *** The court based its test on numerous such decisions from jurisdictions across the country. However, the legal soundness of Clark and the decisions on which it relied is questionable, as many of these jurisdictions misapplied the legal doctrines underlying [agency-by-estoppel] theory.
Note, Clark v. Southview Hospital : Ohio Follows the Nationwide Trend of Using Agency by Estoppel to Impose Strict Liability On Hospitals (1995), 9 J.L. & Health 319, 320; see Note, The Ostensible Agency Doctrine: In Search of the Deep Pocket? (1989), 57 UMKC L.Rev. 917, 924 (The author notes that, "Despite its wide acceptance and apparent simplicity, the doctrine has evoked confusion, and many courts have used different language to describe the same phenomenon."); accord Fehn, Are We Protected From HMO 1 Negligence?: An Examination of Ohio Law, ERISA Preemption, and Legislative Initiatives (1997), 30 Akron L.Rev. 501; cf. Perdue & Baxley, Cutting Costs - Cutting Care: Can Texas Managed Health Care Systems and HMOs Be Liable for the Medical Malpractice of Physicians? (1995), 27 St. Mary's L.J. 23, 88.
Sheldon v. Damle, 2004 R.I. Super. LEXIS 160 (R.I. Super. Ct. 2004)
The fact-specific holding
“A court denied a hospital's motion for summary judgment in a husband's suit alleging it was vicariously liable for doctor's medical malpractice under doctrine of apparent authority. Direct evidence of what deceased patient believed was not required.”
The paragraphs, in block quote, that contain the cite
In a medical malpractice setting, Agency § 267 requires a plaintiff to show: (1) a representation by the hospital that the allegedly negligent physician is his servant or agent; and (2) the plaintiff, or injured party, must justifiably rely upon the skill or care of the apparent agent to his detriment. Comment a to Agency § 267 specifically sets forth that an injured party's belief that an actor (physician) is the defendant's (hospital) servant is insufficient to impose liability. Comment a further states, "there must be such reliance upon the manifestation as exposes the plaintiff to the negligent conduct." The second prong of Agency § 267 clearly requires a plaintiff to show actual reliance upon the apparent authority of the hospital to control the allegedly negligent physician. See 9 J.L. & Health 319, 341.
Many courts, when initially faced with claims of "apparent authority"/"ostensible agency"/ "agency by estoppel" in a hospital setting, claim to adopt Agency § 267, but erroneously negate the requisite element of reliance. These courts fail to recognize that they actually adopted Torts § 429, the more lenient standard. This negation results in an abrogation of Agency § 267 and, moreover, a means by which a state can hold a hospital, in essence, strictly liable for negligent treatment by their physicians retained as independent contractors. See 9 J.L. & Health 319, 337 .
Dep’t of Human Serv. v. Hooper, 1997 Tenn. App. LEXIS 139 (Tenn. Ct. App. 1997)
The fact-specific holding
“Summary judgment declaring defendant's paternity was improperly granted because a statutory conclusive presumption of paternity where scientific probability of paternity was 99 percent or greater violated defendant's right to due process of law.”
The final consideration under Mathews v. Eldridge involves the risk of inaccurately adjudicating someone a father because the conclusive presumption has foreclosed his ability to demonstrate that he is not the father of a particular child. To understand this risk, it is essential to understand what the probability of paternity percentage actually means. With a 9.98% probability of paternity, which is significantly higher than Defendant's in this case, "in a city with a same-race male population of 500,000, or even 500,001, one hundred other men might theoretically be the father. Taking this to a global scale, if there are 500 million men of the same-race on the planet, 100,000 men might theoretically qualify as putative fathers." E. Donald Shapiro et al, The DNA Paternity Test: Legislating the Future Paternity Action, 7 J.L. & Health, 1, 44 (1992-93) While this article is highly supportive of the use of DNA to determine paternity, it advocates a uniform paternity law where there is a conclusive presumption of paternity only in cases in which the probability of paternity is 99.9999% or above). Although we acknowledge that it is extremely likely that the man named in a paternity action with a 99% or greater probability of paternity is the true father, "the fact remains that paternity indexes are not mathematically solid." Id. In addition, there is the problem of human error in the scientific analyses of the DNA. See Edward J. Imwinkelried, The Debate in the DNA Cases over the Foundation for the Admission of Scientific Evidence: The Importance of Human Error as a Cause of Forensic Misanalysis , 69 Wash U.L.Q. 19, 22 (1991)(indicating that there "is mounting evidence of a significant margin of error in scientific analysis... [and] that fifteen percent of all medical laboratory tests are in error.") It is indisputable that an opportunity to be heard would be of value in guarding against an erroneous adjudication or paternity based upon a misleading or an inaccurate DNA test result.
State v. Kalakosky, 852 P.2d 1064 (Wash. 1993)
The fact-specific holding
“The search warrant for convicted rapist's home and vehicles was supported by probable cause because there was ample information in the affidavit from which the judge could have reasonably concluded he was involved in criminal activity.”
The Victims of Sexual Assault Act, RCW 70.125, seeks to protect rape victims' expectations of privacy in their communications with sexual assault counselors. We recognize that a key element in the successful counseling of sexual assault victims is the assurance of confidentiality of their communications. n33
n33 See Note, The Existing Confidentiality Privileges as Applied to Rape Victims , 5 J.L. & Health 101 (1990-91).
Long v. Great West Life & Annuity Ins. Co., 957 P.2d 823 (Wyo. 1998)
The fact-specific holding
“Summary judgment was improper in an insured's claim against its insurer for the denial of treatment through a utilization review process because neither Wyoming law nor the insurance contract provided an administrative remedy requiring exhaustion.”
In past decades, health care costs rose dramatically and, by the 1980's, the third party payor system of private insurers had introduced patients and physicians to the managed care notion of cost containment in the form of concurrent and prospective utilization review systems. These systems have fundamentally shifted the way that health care is funded, organized and administered by involving a third party in cost-conscious medical decision-making. Typically, the provider of utilization review services reviews the treating physician's prescribed course of care and treatment plans, requires pre-admission certification for hospital stays, and monitors a hospital stay to determine its continuing appropriateness. Usually, the provider, who may or may not be a doctor, relies upon established clinical guidelines for a "statistical person" and does not have first-hand knowledge of the particular patient. n2
n2 Clinical practice guidelines are defined as "systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical conditions. Medical practice guidelines must be distinguished from guidelines for utilization review which serve only a cost containment purpose. William R. Trail and Brad A. Allen, Government Created Medical Practice Guidelines: The Opening of Pandora's Box, 10 J.L. & HEALTH 231, 234-36 (1996); Andrew L. Hyams, et al., Medical Practice Guidelines in Malpractice Litigation: An Early Retrospective, 21 J. HEALTH POL., POL'Y & L. 289, 304 (1996) (citing Grogan, C.M., et al., How Will We Use Clinical Guidelines? The Experience of Medicare Carriers, 19 J. HEALTH POL., POL'Y & L. 7, 26 (1994)).
Battle v. Mineta, 387 F. Supp. 2d 4 (D.C.D.C. 2006)
The fact-specific holding
“Former federal employee's claim under the Rehabilitation Act, 29 U.S.C.S. § 793, failed as a matter of law because the employee's claim that his anxiety disorder prevented him from working with a certain supervisors did not substantially limit the "major life activity" of work or otherwise qualify him as handicapped.”
There is Circuit precedent for determining what is a "substantial" limit on a major life activity. In Haynes v. Williams, 364 U.S. App. D.C. 108, 392 F.3d 478 (D.C. Cir. 2004) , the Court of Appeals held, citing Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198, 151 L. Ed. 2d 615, 122 S. Ct. 681 (2002) , that a skin irritation that was triggered by appellant's work environment at a single workplace was not permanent or long-term and therefore could not substantially limit a major life activity under the Americans with Disabilities Act. The logic of the statutory requirement that the limitation of a major life activity be "substantial" has been criticized. n5
n5 In Accommodating Vulnerabilities to Environmental Tobacco Smoke: A Prism for Understanding the ADA, 12 JOURNAL OF LAW AND HEALTH 1 (1998), the authors discuss this very problem, namely, that "individuals with asthma or other impairments who have only claimed that their impairment limits their ability to work in one particular workplace (and do not allege that they experience a substantial limitation of another major life activity, such as walking or breathing) are unlikely to be found to have a disability." Id. at 14. According to the authors, it is this kind of logic that allows employers to deny reasonable accommodations, for example, to employees who experience respiratory reactions to second-hand smoke.
Hecht v. Super. Ct., 16 Cal. App. 4th 836 (CAl. Ct App. 1993)
The fact-specific holding“It was an abuse of discretion to order the destruction of decedent's sperm without first determining the validity of his will and his contract with the sperm bank, both of which contained instructions regarding his vials of sperm.”
We are aware of only one other court which has addressed the issue of the right of a woman to the sperm of a decedent. In 1984, in Parpalaix v. CECOS, the French tribunaux de grande instance ordered CECOS, a government run sperm bank in a Paris suburb, to return stored sperm of a decedent to a doctor chosen by his surviving wife. In light of the discussion in the preceding section pertaining to unmarried women, we find the Parpalaix case instructive and pertinent to the issue before us although it dealt with a married couple. We glean the following facts and decision in the Parpalaix case from a discussion of it in Shapiro and Sonnenblick, supra, 1 Journal of Law and Health at pages 229-233. n7
St. Joseph Med. Ctr., Inc. v. Cardiac Surgery Assocs., P.A., 896 A.2d 304 (Md. Ct. App. 2006)
The fact-specific holding
“In denying a hospital's motion for protective order under Md. R. 2-403, trial court erred by ruling that e-mails, letters, and testimony of hospital staff to medical review committee were not protected by medical review committee privilege, as Md. Code Ann., Health Occ. § 1-401(d)(1) was not limited to documents generated by the committee itself.”
Although most states have statutes creating a medical review committee privilege, the wording of the statutes varies considerably. Furthermore, there are only a limited number of state supreme court decisions dealing with the issue now before us, under statutes with the same or similar wording to that contained in § 1-401(d) . For a general review of state statutes and judicial decisions, see Charles David Creek, The Medical Review Committee Privilege: A Jurisdictional Survey , 67 N.C.L. Rev. 179 (1988) ; Susan O. Schentzow and Sylvia Lynn Gillis, Confidentiality and Privilege of Peer Review Information: More Imagined Than Real , 7 Journal of Law and Health 169 (1993).
Zearfoss v. Frattaroli, 646 A.2d 1238 (Pa. Super. Ct. 1994)
The fact-specific holding
“In an action for child support, summary judgment in favor of a mother was erroneous because blood tests were not conclusive evidence of the father's paternity, but were only one factor in the totality ofthe evidence presented on the question.”
An affirmative finding of paternity with the same certainty cannot be obtained from blood antigen tests, such as were performed in the instant case. Typing red and white blood cell antigens reveals the extent to which an alleged father and child share selected cellular, biomechanical properties. From the results of blood cell antigen tests it is sometimes possible to deduce, with a high degree of reliability, that an alleged father is not the biological father. It is never possible from the same tests, however, to deduce with the same certainty that a particular man fathered a particular child. Stahli v. Wittman, 412 Pa. Super. 281, 603 A.2d 583, alloc. denied, 533 Pa. 601, 617 A.2d 1275 (1992). DNA tests have the potential for being highly accurate because each individual's DNA is unique, and thus an acceptable "match" of DNA strands between a putative father and child can exclude a much larger population of potential fathers than does an HLA test. See E. Donald Shapiro, Stewart Refler, and Claudia Psome, The DNA Paternity Test: Legislating the Future Paternity Action, 7 Journal of Law and Health 1 (1993) (hereinafter "Paternity Test"); see also Mastromatteo v. Harkins, 419 Pa.Super. 329, 335, 615 A.2d 390, 393 (1992) (DNA paternity evidence can more accurately identify putative father as biological father and is thus not cumulative of HLA tests), alloc denied, 535 Pa. 648, 633 A.2d 152 (1993).
State v. Michael J.W., 565 N.W.2d 179 (Wis. Ct. App. 1997) (holding that "[i]n a paternity action, summary judgment was properly precluded because the man claimed that he never had sex with the mother. A new trial was required because a charge that he was rebuttably presumed to be the father based on blood tests was denied.”):
The results of the various tests performed in 1988 were set out in three documents. The first, dated August 11, 1988, reported only tests conducted locally: ABO, Rh, MNSs, Kell, Duffy, and Kidd red blood cell antigens, six serum proteins and HLA, A and B series. It stated that the probability of paternity of the combined tests was 97.71%. The second document, dated November 23, 1988, reported the DNA analysis with a probability of paternity of 95.9%. The final paternity report combined n3 the probabilities from all 1988 tests. It concluded the statistical probability of paternity was 99.9%.
n3 Paternity testing is a process of exclusion rather than a process of identification, wherein the probability of exclusion or the probability of paternity is always stated as a percentage of less than 100% because all males in a given population are not tested. The maximum probability of exclusion that can be achieved differs for each type of blood test that examines genetic markers. For example, the ABO red blood cell antigen is the simplest test to run, but it has a maximum exclusion of only 20%. However, if it is combined with another genetic marking test, such as the MNSs test, which has a 31.6% maximum exclusion capability, the maximum exclusion rate from the combined effect of the two different red blood cell antigen tests increases to 45.3%. See Shapiro, et al., The DNA Paternity Test: Legislating the Future Paternity Action , 7 Journal of Law and Health 1 (1992-93).
We are aware of only one other court which has addressed the issue of the right of a woman to the sperm of a decedent. In 1984, in Parpalaix v. CECOS, the French tribunaux de grande instance ordered CECOS, a government run sperm bank in a Paris suburb, to return stored sperm of a decedent to a doctor chosen by his surviving wife. In light of the discussion in the preceding section pertaining to unmarried women, we find the Parpalaix case instructive and pertinent to the issue before us although it dealt with a married couple. We glean the following facts and decision in the Parpalaix case from a discussion of it in Shapiro and Sonnenblick, supra, 1 Journal of Law and Health at pages 229-233. n7